IN THE CASE OF:	  

		BOARD DATE:	    28 April 2011

		DOCKET NUMBER:  AR20100026821 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, that his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states that he was charged with selling drugs which was not the case.  He was offered a discharge instead of getting reduced in rank and restrictions.  He finally states that he is an American that was young and made a very bad decision.

3.  The applicant provides no additional documents in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military personnel records show he enlisted in the Regular Army and entered active duty on 12 February 1971 and at the time he enlisted, the applicant was 20 years old.  He completed basic combat training and advanced individual training and was awarded military occupational specialty (64C) Truck Master. 

3.  On 20 August 1971, the applicant received nonjudicial punishment (NJP) for disobeying a lawful order.  His imposed punishment was 14 days extra duty and 7 days restriction.  

4.  On 22 September 1971, the applicant received an NJP for disobeying a lawful order.  His imposed punishment was a forfeiture of $50.00 pay per month for 
2 months (suspended for 30 days).  This document is missing from his file. 

5.  On 10 November 1971, court-martial charges were preferred against the applicant for making a false statement under oath and for selling ten capsules of Lysergic Acid Diethylamide (LSD) and Phencyclidine mixed. 

6.  On 5 January 1972, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Personnel Separations), chapter 10, for the good of the service.  After consulting with counsel, the applicant submitted a voluntary request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial.  In his request for discharge he indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He acknowledged that he understood that he could receive an undesirable discharge and that he might be deprived of all benefits as a result of such a discharge.  He also elected not to submit a statement in his own behalf.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life if he was issued an Undesirable Discharge Certificate and he would be deprived of many or all Army benefits.  

7.  On 6 January 1972, the applicant’s unit commander recommended that the applicant be discharged from the United States Army and that he receive an Undesirable Discharge Certificate.  It was in the unit commander opinion that the applicant had been a source agitation since his assignment to B company on 
12 May 1971.

8.  On 27 January 1972, the appropriate authority approved the applicant's request for discharge for the good of the service and directed that he be issued an Undesirable Discharge Certificate.

9.  On 13 February 1974, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10 for the good of the service with an Undesirable Discharge Certificate.  He had completed 11 months and 20 days of net active service.

10.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

12.  Army Regulation 635-200, paragraph 3-7a, provides that an HD is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

13.  Army Regulation 635-200, paragraph 3-7b, states a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his undesirable discharge should be upgraded to an honorable discharge because he believes he was never charged with selling drugs was carefully considered and found to be without merit.  

2.  The applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of service and in lieu of trial by court-martial.  In connection with such a discharge, he was charged with the commission of an 
offense punishable with a punitive discharge under the Uniform Code of Military Justice.  Procedurally, he was required to consult with defense counsel and to voluntarily request separation from the Army in lieu of trial by court-martial.  

3.  Therefore, the type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The record contains no indication of procedural or other errors that would have jeopardized his rights.  Furthermore, the quality of the applicant's service did not meet the standards of acceptable conduct and performance expected of Army personnel.

4.  Records show that the applicant was 20 years of age at the time of his offenses.  However, there is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

5.  In view of the above, there is no basis for granting his requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X_____  __X____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      __________X____________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20100026821



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ABCMR Record of Proceedings (cont)                                         AR20100026821



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